Solo Newsletter

Volume 11, no. 2

Public Disclosure: Why Mum’s the Word

By Ernest Schaal

Rule 1.6 of the ABA Model Rules of Professional Conduct states: “A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation. . . .”

We obey Rule 1.6 in order to avoid dissatisfied clients and disciplinary complaints. Unfortunately, sometimes we assume more privacy in public places than really exists. That assumption can cause us to reveal information that we shouldn’t.

For example, let’s say we have been in meetings with colleagues for hours about a problem, and we break for lunch. While eating, the conversation drifts back to the problem. At a nearby table, a competitor overhears us and takes notes.

In another example, let’s say we are flying somewhere to present a case. On the plane we polish our remarks on our laptop. In the seat near us is a lawyer from the other side who sees what we write.

Sound far-fetched? These two examples actually happened. The lunch example happened when I was a research chemical engineer. The people talking were researchers from our chief competitor, and the person taking notes was my plant manager. In the airplane example, the lawyer who was in the next seat is a friend of mine.

In both examples, someone assumed a degree of privacy in public places that does not exist, based on the belief that strangers wouldn’t be interested in what he or she does. That assumption fails miserably when the passerby is someone with an opposing vested interest. The result was that confidential information was inadvertently disclosed to someone that the client would not have wanted to receive that the information.

This problem also crops up in the use of cellular phones. Although technology has reduced the risks of someone intercepting our cellular conversations in the air, that does not reduce the risk of people overhearing at least your side of confidential information. This risk is especially great when a cellular phone is used in some sort of transit, such as a bus or subway, where the passengers are sitting or standing near you and have nothing better to do than to listen to your call.

What can we do about this? We can remind ourselves that activities carried out in public are not private, and we can train ourselves to avoid activities that would disclose confidential information to the public.

Ernest Schaal is a retired patent attorney living in Gifu, Japan. Contact him at eschaal@mac.com.